Something smelly, perhaps loud ... but nothing to see: what am I? Is farting bullying behaviour?

Author: James Mattson draws on over 20 years of employment and industrial law experience to provide advice and guidance that’s grounded in the real world. James views his relationship with clients as a partnership focused on delivering strong outcomes and positive productive workplaces.

We have a whopper of a story tell to you. In fact, it's a little ripper. Ever heard (of) the colleague who likes to fart at work? It would be surprising if, in your working life, you have not encountered some wind at work: the average healthy person farts about 14 times a day (so they say). I guess we all have a little body trumpet that will toot whether we like it or not.

The Victorian Supreme Court recently had to hear a case about, amongst other things, farting at work: Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018] VSC 136. Justice Zammit was asked to determine whether farting was bullying behaviour. No doubt, this has been a lingering question left unresolved in industrial circles until late March 2018.

A keyword search identifies a number of past cases where older workers have been called "old farts" and intoxicated employees described as "pissed as a fart". There have been cases involving, believe it or not, defecation, but it appears there has been no dismissal for farting; that would be possibly "unAustralian".

In this bulletin, we (over) analyse this silent but deadly issue. Dropping our guts the odd pun is necessary. Despite the obvious humour, the case does provide some good lessons.

The fart - it isn't all bad

Any analysis must begin with understanding the fart. It has often been a harmless and humorous event when deployed at the appropriate time. The iconic camp fire scene in the 1974 Mel Brook's classic Blazing Saddles has made communal farting a humorous event. As children we have all heard about the 'cupcake' and, no doubt, the 'Dutch oven' from a bemused parent. Regardless of any annoyance at having a whiff of polluted air, it is indisputable that a good fart often results in a giggle or laugh.

 A duty to provide a safe workplace

The law imposes on an employer a duty to take reasonable care to avoid causing its employees a recognisable psychiatric injury.

An employer will be prima facie liable if it knew, or ought to have known, that an employee was at risk of being bullied and did not take steps to ameliorate that risk. An employer is vicariously liable for the negligent acts or omissions of its employees in the scope of their employment. "Self-evidently, this may include bullying another employee", said Justice Zammit.

Workplace bullying is repeated, unreasonable behaviour directed towards an employee, or group of employees, that creates a risk to health and safety.

It can be readily accepted that farting at or near a work colleague is not nice. Doing so repeatedly and deliberately to humiliate or intimidate a colleague could conceivably be bullying. It all depends on the farts, sorry, the facts.

The facts

Mr Hingst claimed he was bullied and developed a psychiatric injury. Mr Hingst alleged his work colleague would let it rip in communal work areas. Mr Short would regularly "lift his bum and fart" on him. Mr Hingst said he became increasingly unhappy about Mr Short's flatulence and would protest saying "you're not serious?". This flatulent behaviour continued for some time.

In true style, Mr Hingst went and brought a deodorant can to spray Mr Short. Mr Hingst called Mr Short, "Mr Stinky".

Mr Short admitted he may have accidentally passed wind on occasions. Another employee said it was "typical banter or mucking around". But could these butt-yodels be properly described as bullying?

The decision

The Court did not accept that Mr Short farted often. The Court concluded at [130]:

Even if Mr Short did do what the plaintiff alleged, it would not necessarily amount to bullying. The plaintiff and Mr Short were only in the communal area together for a short period of time. It is difficult to see how Mr Short's conduct could have intimidated or caused distress to the plaintiff. The plaintiff was able to spray Mr Short with deodorant and give him the nickname 'Mr Stinky'. Indeed, on the plaintiff's own evidence, had he not lost his job and been abused over the telephone, the flatulence would 'never have been a big issue'.

Context was important. The farting was not really a concern (or risk to safety) for Mr Hingst. This was, in part, shown by his response in buying deodorant and giving a nickname. It was, office humour.

Lessons

It is easy to resort to the label of bullying but not all (inappropriate) acts will be bullying in nature. Flatulence is a normal bodily function which may be found to be humorous when it occurs accidentally or in a comical situation. Office humour or harmless tomfoolery should not be readily equated with bullying. Room for occasional and harmless fun needs to be maintained in workplaces (even if not to everyone's liking). Workplaces cannot become sterile boring environments.

Equally, it must be recognised that such acts, if repeated and personally directed at a person, may give rise to a different conclusion. Any behaviour that is not appropriate needs to be dealt with in a measured and responsible manner. Much like dealing with body odour; warnings may need to be issued. 

Otherwise, have a chuckle and try not to take everything so seriously. Like all wind, it will pass.